United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
William P. Lynch United States Magistrate Judge.
Henry and Sofie Ortiz filed a motion to remand (Doc. 10) and
supporting memorandum (Doc. 11). The Ortizes contend that
this Court lacks diversity jurisdiction over the case. The
Defendants respond that the Court has federal question
jurisdiction because the Ortizes assert copyright claims.
(Doc. 13 at 3.) The Ortizes filed a reply (Doc. 14) and a
subsequent “Appeal for Review of Attorney Dolan's
Failed Attempts at Removal to Federal Court” (Doc. 17).
This action arises out of certain scientific and
paleontological activity that allegedly occurred on the
Ortizes's property without their consent. The Ortizes
bring claims of criminal trespass, criminal theft, criminal
possession and use of stolen property, conversion, nuisance,
and violation of the Fifth Amendment takings clauses. Upon
reviewing the Notice of Removal (Doc. 1), I entered an Order
to Show Cause directing the Defendants to explain certain
procedural defects in the removal. (Doc. 21.) As explained
herein, I recommend that the Court deny the motion to remand
and the “appeal for review.”
the Ortizes are pro se litigants, I must construe their
pleadings liberally and hold them to a less stringent
standard than is required of a party represented by counsel.
See Weinbaum v. City of Las Cruces, 541 F.3d 1017,
1029 (10th Cir. 2008) (citing Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991)). Liberal construction
requires courts to make some allowance for a pro se
litigant's “failure to cite proper legal authority,
his confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading
requirements.” Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting
Hall, 935 F.2d at 1110) (alterations omitted).
However, “the court cannot take on the responsibility
of serving as the litigant's attorney in constructing
arguments and searching the record.” Id.
of civil actions may be based on diversity jurisdiction, 28
U.S.C. § 1332, or federal question jurisdiction, 28
U.S.C. § 1331, and is governed by 28 U.S.C. §§
1441 and 1446. Section 1441(a) provides that any civil action
brought in state court, over which a federal district court
has original jurisdiction, may be removed by the defendant or
defendants to the relevant district court. Diversity
jurisdiction under § 1332(a)(1) requires an amount in
controversy in excess of $75, 000 and complete diversity of
citizenship between plaintiffs and defendants. Federal
question jurisdiction under § 1331 exists whenever the
“civil action aris[es] under the Constitution, laws,
or treaties of the United States.” “Federal
jurisdiction is determined based on the facts as they existed
at the time the complaint was filed.” Ravenswood
Inv. Co., L.P. v. Avalon Corr. Servs., 651 F.3d 1219,
1223 (10th Cir. 2011) (citing Smith v. Sperling, 354
U.S. 91, 93 n.1 (1957)).
reviewed the Defendants' response to my Order to Show
Cause, I will not recommend remand for procedural defects. I
note that the Defendants did not satisfactorily establish
that they complied with the procedural requirements of 28
U.S.C. § 1441. However, procedural defects in removal
are not jurisdictional and may be waived. Huffman v. Saul
Holdings Ltd. P'ship, 194 F.3d 1072, 1077 (10th Cir.
1999). The Ortizes did not address the 30-day period for
removal in their motion to remand and thus have waived the
Ortizes assert that this case should be remanded because the
parties are all citizens of the same state and because the
Ortizes stipulate that the claim is worth less than $75, 000,
thus, the Court lacks diversity jurisdiction. The Defendants
compounded confusion by discussing the $75, 000 threshold in
their Notice of Removal. (Doc. 1 at 2.)
the Ortizes are correct that diversity jurisdiction does not
exist in this case, that is the wrong inquiry. The Notice of
Removal was explicitly based on 28 U.S.C. § 1331 -
federal question jurisdiction - because of the Fifth
Amendment takings clause allegation and a claim for copyright
not appear from the face of the Complaint that the Ortizes in
fact bring claims for copyright violations. Instead, the
Ortizes attached several exhibits to the Complaint, including
a handwritten note that says, “Note illegal copyright
of Plaintiffs' property” (Doc. 1-2 at 7), another
handwritten note that says, “Note illegality of
copyright in respect to Plaintiffs' property” (Doc.
1-2 at 13), and an underlined explanation that reads,
“The [Defendants] have gone so far as to claim
copyright in Plaintiffs' fossils, paleontological site
and recent scientific information derived thereof, even after
being informed of the rightful property owners” (Doc.
1-2 at 11). None of these instances suggest that the Ortizes
are pursing any remedy for copyright violation or
misappropriation of copyrighted material.
the Ortizes did not bring a claim under copyright law, they
did explicitly invoke the takings clause of the Fifth
Amendment. (Doc. 1-2 at 3); see Chicago, B. & Q.R.
Co. v. City of Chicago, 166 U.S. 226, 239 (1897)
(incorporating the Fifth Amendment's takings clause to
the states by operation of the Fourteenth Amendment;
“[t]he conclusion of the court on this question is
that, since the adoption of the fourteenth amendment,
compensation for private property taken for public uses
constitutes an essential element in ‘due process of
law, ' and that without such compensation the
appropriation of private property to public uses, no matter
under what form of procedure it is taken, would violate the
provisions of the federal constitution.”). Because the
Ortizes invoked the Constitution as a basis for their claim,
the Court has subject matter jurisdiction pursuant to 28
U.S.C. § 1331.
Ortizes also suggest that the consent or unanimity
requirements of 28 U.S.C. § 1446 have not been
satisfied, and removal is therefore deficient. All defendants
who had been properly served “must join in or consent
to the removal of the action.” 28 U.S.C. §
1446(b)(2)(A). While the Defendants did not attach
individually signed consent forms, defense counsel
represents, on penalty of Rule 11 sanctions, that the
defendants concurred in removal. This is sufficient.
the Ortizes assert constitutional claims, and because the
procedural defects in removal are not jurisdictional, I
recommend that the Court deny the motion to remand.
I recommend that the Court construe the “Appeal for
Review” as a supplement to the motion to remand and
deny the same.
PARTIES ARE NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a copy
of these Proposed Findings and Recommended Disposition they
may file written objections with the Clerk of the District
Court pursuant to 28 U.S.C. § 636(b)(1). A party must
file any objections with the Clerk of the District Court
within the fourteen-day period if that party wants to have
appellate review of the ...